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articipating IN GOVERNMENT

Informing the Citizens Find out the current cases before the Supreme Court that may be controversial. Watch for information in periodicals and newspapers on the issues in these cases. Write a summary of one of these issues and circulate it among people you know to find out what decision they believe the Court should make. Discuss your findings with the class.

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The Supreme Court Take a virtual tour of the Supreme Court Building in Washington, D.C., and see how the judicial branch works. Glencoe’s Democracy in Action Video Program The Supreme Court build- ing is a nearly self-sufficient, structured community. The Democracy in Action video program “The Supreme Court” describes the Supreme Court’s procedures and the administrative sup- port other workers provide for the nine justices. As you view the video program, try to identify any legal terms you recog- nize or any words that The marble figure ▲ have a special meaning in The Guardian a court of law. stands outside the Supreme Court building. Hands-On Activity Use library or Internet resources to re- search the procedures a case must follow to be heard by the United States Supreme Court. Be sure to include every level of court that hears the case and each appeal prior to the Supreme Court. Use a word processor to create an organizational chart showing the steps in this process with a brief explanation of each one.

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Decisions, Decisions The Supreme Court and lower federal courts decide cases that affect your everyday life, from the air you breathe to the rights you enjoy. In this chapter you will see the relationship of these courts to each other and the powers of each. To find out more about how the U.S. court system works and how it impacts you, view the Democracy in Action Chapter 11 video lesson: The Federal Court System at Work

★ ★ ★ ★ ★ ★ ★ ★ ★ ★ GOVERNMENT

Chapter Overview Visit the United States Government: Democracy in Action Web site at gov.glencoe.com and click on Chapter 11—Overview to preview chapter information.

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Section 11 Powers of the Federal Courts

Reader’s Guide he Constitution provides for a Supreme Court of the United States as part of a Key Terms court system that would balance the pow- ers of the other two branches of govern- concurrent jurisdiction, original jurisdiction, appel- ment.T Unlike the president and Congress, however, late jurisdiction, litigant, due process clause the Supreme Court played a very minor role until Find Out Chief Justice John Marshall was appointed in ■ How does federal court jurisdiction differ from 1801. He served until 1835 and helped to increase state court jurisdiction? the power of the Court. ■ How do Supreme Court decisions reflect the Over the years the Court’s growing role in attempts of the justices to meet changing American government met serious challenges, as a social conditions? historian of the Court noted: Understanding Concepts Nothing in the Court’s history is more Constitutional Interpretations How has the Supreme Court historically increased its power? “striking than the fact that, while its signifi- cant and necessary place in the Federal form of Government has always been rec- ognized by thoughtful and patriotic men, nevertheless, no branch of the Government and no institution under the Constitution Is Chief Justice has sustained more continuous attack or Marshall reached its present position after more JANUARY 20, 1801 WASHINGTON, D.C., vigorous opposition. —Charles Warren, 1924 resident John Adams ” fellow Feder- Psurprised Today the judicial branch of government is well by nominating Secre- alists established as an equal with the legislative and tary of State John Marshall the executive branches. for chief justice of United States. Quick Sen- ate confirmation is likely. Jurisdiction of the Courts The nomination follows John Jay’s refusal to be The United States judiciary consists of par- reportedly allel systems of federal and state courts. renominated, John Marshall because he views the Each of the 50 states has its own system of courts Supreme Court as having whose powers derive from state constitutions and is thought to favor too little power. Marshall laws. The federal court system consists of the and the federal govern- strengthening the Court Supreme Court and lower federal courts estab- views could cause conflict ment. Some believe these lished by Congress. Federal courts derive their and the probable new between the new chief justice powers from the Constitution and federal laws. Thomas Jefferson. president, Marshall’s cousin Federal Court Jurisdiction The author- ity to hear certain cases is called the jurisdic- tion of the court. In the dual court system, state

U.S. Courthouse in Austin, Texas ▲ CHAPTER 11: THE FEDERAL COURT SYSTEM 305 302-311 CH11S1-860053 12/1/04 8:03 PM Page 306

TheThe FederalFederal CourtCourt SystemSystem The United States Supreme Court

U.S. Court of 12 U.S. Courts U.S. Court of Appeals Military Appeals of Appeals for the Federal Circuit

U.S. Court of U.S. Military Courts U.S. 94 International Claims Courts Territorial of the Tax District Trade Court Courts District of Court Courts Columbia U.S. Court of Veterans’ Appeals Appeals from Federal Appeals from Highest Regulatory Agencies State Courts

Source: Squire and Lindsey, el al., Dynamics of Democracy, 2d. ed. (Madison, WI: Brown & Benchmark, 1997).

Critical Thinking The U.S. Constitution gives Congress the authority to create lower federal courts. What court has jurisdiction over a case involving a United States veteran?

courts have jurisdiction over cases involving state Concurrent Jurisdiction In most cases the laws, while federal courts have jurisdiction over difference between federal and state court jurisdic- cases involving federal laws. Sometimes the juris- tion is clear. In some instances, however, both fed- diction of the state courts and the jurisdiction of eral and state courts have jurisdiction, a situation the federal courts overlap. known as concurrent jurisdiction. Concurrent The Constitution gave federal courts jurisdic- jurisdiction exists, for example, in a case involving tion in cases that involve United States laws, citizens of different states in a dispute concerning treaties with foreign nations, or interpretations of more than $75,000. In such a case, a person may the Constitution. Federal courts also try cases in- sue in either a federal or a state court. If the person volving bankruptcy and cases involving admiralty being sued insists, however, the case must be tried or maritime law. in a federal court. Federal courts are also given the jurisdictional authority to hear cases if certain parties or persons Original and Appellate Jurisdiction The are involved. Examples of these include: (l) ambas- court in which a case is originally tried is known as sadors and other representatives of foreign govern- a trial court. A trial court has original jurisdic- ments; (2) two or more state governments; (3) the tion. In the federal court system, the district courts United States government or one of its offices or as well as several other lower courts have only orig- agencies; (4) citizens who are residents of different inal jurisdiction. states; and (5) citizens who are residents of the If a person who loses a case in a trial court same state but claim lands under grants of differ- wishes to appeal a decision, he or she may take the ent states. case to a court with appellate jurisdiction. The

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federal court system provides courts of appeals that ington, Secretary of State Jefferson wrote to Chief have only appellate jurisdiction. Thus, a party may Justice John Jay asking the Court for advice. Jeffer- appeal a case from a district court to a court of ap- son submitted 29 questions dealing with American peals. If that party loses in the court of appeals, he neutrality during the war between France and or she may appeal the case to the Supreme Court, England. Three weeks later the Court refused to which has both original and appellate jurisdiction. answer the questions with a polite reply:

We have considered the previous question Developing Supreme “stated in a letter written by your direction Court Power to us by the Secretary of State. . . . We ex- ceedingly regret every event that may Since its creation by the Constitution, the cause embarrassment to your administra- Supreme Court has developed into the tion, but we derive consolation from the most powerful court in the world. It may also be reflection that your judgment will discern the least understood institution of American gov- what is right. . . . ernment. The role of the Court has developed from custom, usage, and history. ”

Early Precedents Certain principles were es- tablished early in the Court’s history. Neither the Marbury v. Madison The Court justices did Supreme Court nor any federal court may initiate not hesitate, however, to assert a judicial power action. A judge or justice may not seek out an issue previously suggested in The Federalist, Number 80, and bid both sides to bring it to court. The courts published in 1788. The case was Marbury v. Madi- must wait for litigants, or people engaged in a law- son. As President Adams’s term expired in 1801, suit, to come before them. Congress passed a bill giving the president a Federal courts will only determine cases. They chance to appoint 42 justices of the peace in the will not simply answer a legal question, regardless District of Columbia. The Senate quickly con- of how significant the issue or who asks the ques- firmed the nominees. The secretary of state had tion. In July 1793, at the request of President Wash- delivered all but 4 of the commissions to the new

Judicial Review Constitutional Interpreta- tions On his last night in the White House, Adams stayed up signing judicial commissions for men of his party, the Feder- alists, defeated in the 1800 elections. The new president, Jefferson, angrily called Adams’s appointees “midnight judges.” Adams’s actions resulted in the landmark case Marbury v. Madison, which secured the power of judicial review for the Supreme Court. Why is judicial review a key feature of the United States governmental system?

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GOVERNMENT

Student Web Activity Visit the United States States’ Rights Era and the Scott Case Government: Democracy in Action Web site at President Andrew Jackson nominated Roger Taney gov.glencoe.com and click on Chapter 11— as chief justice when John Marshall died in 1835. Student Web Activities for an activity about the During his eight years in office Jackson named powers of the federal courts. seven justices to the Supreme Court. The Court began to emphasize the rights of the states and the rights of citizens in an increasingly democratic officers by the day Thomas Jefferson came into of- society. Then, in the 1840s, states’ rights became tied fice. Jefferson, in one of his first acts as president, to the slavery issue. In Dred Scott v. Sandford (1857) stopped delivery of the remaining commissions. an aging Taney read an opinion that declared African William Marbury, one of those who did not receive Americans were not and could not be citizens, the his commission, filed suit in the Supreme Court, Missouri Compromise was unconstitutional, and under a provision of the Judiciary Act of 1789. Congress was powerless to stop the spread of slav- The Court heard the case in February 1803. ery. The national furor over the Scott case damaged Chief Justice John Marshall announced the ruling the Court. It also made an objective evaluation of that Marbury’s rights had been violated and that the Taney era nearly impossible. he should have his commission. However, Mar- shall said that the Judiciary Act of 1789 had given Due Process the Court more power than the Constitution had allowed. Therefore, the Court could not, under the Following the Civil War the Supreme Court Constitution, issue a writ to force delivery of the issued several rulings on the Thirteenth, commission. Jefferson won a victory, but it was Fourteenth, and Fifteenth Amendments.5 These one he did not enjoy. The chief justice had secured Reconstruction amendments were intended to en- for the Court the power to review acts of Con- sure the rights and liberties of newly freed African gress—the power of judicial review. Americans, but the Court did not strongly apply the due process clause of the Fourteenth Amend- John Marshall’s Influence In several other ment when individuals challenged business or key decisions under John Marshall, the Court state interests. The due process clause says that no carved out its power. In Fletcher v. Peck 1 in 1810, state may deprive any person of life, liberty, or the Supreme Court continued to extend its power property without the due process of law. to review state laws. The Court held that a law passed by the Georgia legislature was a violation of Slaughterhouse Cases The first and most the Constitution’s protection of contracts. In 1819 significant ruling on the Fourteenth Amendment in Dartmouth College v. Woodward ,2 the Court came down in the 1873 Slaughterhouse Cases. applied the protection of contracts to corporate Louisiana had granted a monopoly on the slaugh- charters. tering business to one company. Competing Marshall not only extended the power of the butchers challenged this grant as denying them the Court, he also broadened federal power at the ex- right to practice their trade. They claimed that the pense of the states. In McCulloch v. Maryland 3 the Fourteenth Amendment guaranteed the privileges Court declared that states could not hamper the and immunities of U.S. citizenship, equal pro- exercise of legitimate national interests. Maryland tection of the laws, and due process. The Court had attempted to tax the Bank of the United States. ruled for the state of Louisiana. It said that the 4 In 1824 in Gibbons v. Ogden, the Court broad- See the following footnoted materials in the Reference Handbook: ened the meaning of interstate commerce, further 1. Fletcher v. Peck case summary, page 758. extending federal authority at the expense of the 2. Dartmouth College v. Woodward case summary, page 757. 3. McCulloch v. Maryland case summary, page 761. states. By 1825 the Court had declared at least one 4. Gibbons v. Ogden case summary, page 758. law in each of 10 states unconstitutional. 5. The Constitution, pages 774–799.

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Protector of Civil Liberties

Fighting Segregation Under the Plessy decision, African Americans could be legally barred from using the same public facilities as white Ameri- cans. Seven-year-old Linda Brown and her family fought for Linda’s right to at- tend an all-white school. This battle led the Supreme Court, in the Brown deci- sion, to overturn the doctrine of “sepa- rate but equal” facilities for African Americans and whites. In what way was the Brown case different from previous segregation cases?

Homer Plessy refused to leave a whites-only railroad coach, leading to the Plessy decision.

Fourteenth Amendment did not increase the rights The Court and Business The Court had re- of an individual. It only extended protection to fused to broaden federal powers to enforce the those rights, privileges, and immunities that had rights of individuals. However, it seemed willing to their source in federal, rather than state, citizenship. broaden the police power of the states to protect consumers from the growing power of business. In the 1870s, in a group of cases known as the Granger Cases, the Court rejected a challenge to state regu- Plessy v. Ferguson latory laws. It held that some private property, such In 1896 the Court upheld as a railroad, was invested with a public interest. A a Louisiana law that required railroads operating state could properly exercise its power to regulate within the state to provide separate cars for white such property. and African American passengers. In Plessy v. Fer- More often, however, the Court sided with guson the Court said that this was a reasonable ex- business interests as the nation industrialized. ercise of state police power to preserve peace and In the 1890s, in United States v. E.C. Knight & Co.1 order. “Legislation is powerless to eradicate racial and other cases, the Court ruled to uphold the mo- instincts or to abolish distinctions,” it concluded. nopoly of business trusts. In Debs v. United States 2 The lone dissenter, Justice Harlan, said this deci- it upheld the contempt conviction of labor leader sion was “inconsistent with the personal liberty of Eugene V. Debs, who had disobeyed an order citizens, white and black.” to call off a strike against a railroad company. The case established the “separate but equal” doctrine, which held that if facilities for both races were equal, they could be separate. This ruling See the following footnoted materials in the Reference Handbook: would not be overturned until Brown v. Board of 1. United States v. E. C. Knight & Co. case summary, page 766. Education of Topeka in 1954. 2. Debs v. United States case summary, page 757.

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During the Progressive era the Court Education of Topeka, the Court out- upheld several federal and state laws lawed segregation in public schools. regulating business, but it returned In several other cases the Court is- to its support for business by the sued rulings that extended equal 1920s. protection in voting rights and A major constitutional cri- the fair apportionment of rep- sis arose in the 1930s over the resentation in Congress and question of federal and state state legislatures. In other cases regulation of the economy. the Warren Court applied due President Franklin D. Roo- process requirements and Bill sevelt, angered by the Court’s of Rights protections to per- decision in Schechter Poultry sons accused of crimes. Al- Corporation v. United States 1 though the Court since then has and other cases, proposed to in- not been as aggressive in advanc- crease the number of Supreme ing these decisions, it has not Court justices. He wanted to pack overruled any major decision of the Court with supportive mem- the Warren Court. bers. Even though this attempt As the twentieth century drew failed, the Court began to uphold Thurgood Marshall argued to a close, it was apparent that the laws that regulated business. the Brown case before the Court. Supreme Court had carved out considerable power to influence policy in the United States. The legal views of the justices and their opinions on the various cases put before them would determine how the Court would use that power. Protecting Civil Liberties The Supreme Court emerged as a major force in protecting civil See the following footnoted materials in the Reference Handbook: liberties under Chief Justice Earl Warren, who 1. Schechter Poultry Corporation v. United States case served from 1953 to 1969. In Brown v. Board of summary, page 765.

Section 11 AssessmentAssessment Checking for Understanding Critical Thinking 1. Main Idea Use a graphic organizer like the one 6. Identifying Alternatives What choice of jurisdic- below to show how the Supreme Court extended tion would be available to a person who was civil liberties in the 1950s and 1960s. being sued by a citizen of another state for Cause Effect/Cause Effect damages of at least $75,000? Separate but Equal doctrine

2. Define concurrent jurisdiction, original jurisdiction, appellate jurisdiction, litigant, due process clause. Constitutional Interpretations Choose one of 3. Identify Marbury v. Madison, judicial review, the cases discussed in Section 1 or another “separate but equal” doctrine. case that contributed to the development of 4. Identify the different jurisdictions of federal and the power of the Supreme Court. Research the state courts. details of the case, including the background, 5. What doctrine was established by the ruling in the ruling, and the reasons for the ruling. Write Plessy v. Ferguson? a newspaper article or tape a news broadcast announcing the effects of the ruling.

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United States v. Virginia, 1996 Democratic equality means CASES TO DEBATE all people are entitled to the same rights before the law. Yet governments often make distinctions among groups of people, such as providing medical benefits only for military veterans. Does a state college’s policy of admitting only men violate the constitutional rights of women? A A female cadet case involving the all-male Virginia Military Institute dealt with this issue. endures VMI traditions.

Background of the Case can treat different groups of people differently only if such a classification serves an important govern- Virginia Military Institute (VMI), a state-supported mental objective such as promoting safety. college, was created in 1839 as an all-male institu- VMI explained that its policy should be allowed tion. Since then, VMI’s distinctive mission had been under the Constitution’s equal protection principle to produce “citizen soldiers,” men prepared for lead- because its school for men brought a healthy diver- ership in civilian and military life. VMI’s “adversative” sity to the state of Virginia’s otherwise coeducation- approach to education required students, called al system. Further, VMI claimed that if women were cadets, to wear uniforms, live in spartan barracks, admitted, the school would have to change housing and regularly participate in tough physical training. arrangements and physical training requirements. New VMI students, called “rats,” were exposed to a Such changes, VMI claimed, would fundamentally seven-month experience similar to Marine Corps boot change its distinctive “adversative” approach to ed- camp. In 1990 the U.S. government sued Virginia and ucation. VMI at the request of a female high school student Finally, VMI offered to establish a separate pro- seeking admission. After a long process of appeals, gram called the Virginia Women’s Institute for Lead- the Supreme Court finally took the case in 1996. ership (VWIL) at a small, private women’s college. Unlike VMI, the women’s college did not offer engi- neering, advanced math, or physics, and its stu- The Constitutional Issue dents had SAT scores about 100 points lower than The U.S. government claimed that by denying VMI’s students. The VWIL program would not involve women the unique educational opportunity offered the tough physical training, uniforms, or barracks to men by VMI, the state of Virginia was making a life that were key parts of the VMI’s “adversative” classification that violated the Fourteenth Amend- approach. VMI cited “important differences between ment’s guarantee of “equal protection of the law.” men and women in learning and developmental Under the equal protection clause, governments needs” as the reason for the different program.

Debating the Case

Questions to Consider You Be the Judge 1. Did VMI’s male-only policy violate the equal In your opinion, was VMI’s goal of educating protection clause? citizen soldiers unsuitable for women? Was VMI’s 2. Was VMI’s proposed remedy of a separate men-only policy unconstitutional? If so, what program a legally acceptable alternative? remedy should be offered?

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Section 22 Lower Federal Courts

Reader’s Guide he Constitution created the Supreme Court. Congress, however, has used its Key Terms constitutional authority to establish a network of lower federal courts, begin- grand jury, indictment, petit jury, judicial circuit, ningT with the Judiciary Act of 1789. A variety of senatorial courtesy lower trial and appellate courts handle a growing Find Out number of federal cases. These courts are of two ■ How do constitutional courts and legislative basic types—constitutional federal courts and leg- courts differ in their jurisdiction? islative federal courts. ■ How are federal court justices chosen? Understanding Concepts Constitutional Courts Political Processes If federal judges are shielded Courts established by Congress under the from direct political influence, why do presidents provisions of Article III of the Constitution try to appoint judges who share their views? are constitutional courts. These courts include the federal district courts, the federal courts of ap- peals, and the United States Court of Internation- al Trade. Must Be Kept Federal District Courts Congress created E-Mail district courts in 1789 to serve as trial courts. JANUARY 19, 1989 WASHINGTON, D.C., These districts followed state boundary lines. As the population grew and cases multiplied, Con- istrict Court gress divided some states into more than 1 dis- judge Barring- D trict. Today the United States has 94 districts, ton Parker has tem- with each state having at least 1 district court. porarily blocked the Large states—California, New York, and Texas— purging of the White House’s e-mail sys- each have 4 district courts. Washington, D.C., tem. Just hours before and Puerto Rico also have 1 district court each. National Security Reagan adminis- The There are more than 550 judges who preside the Archive logo tration was to erase over the district courts. eight years of staff United States district courts are the trial judge intervened. In a computer messages, the courts for both criminal and civil federal cases. Attorney General John courtroom exchange, acting officials (You will learn more about these types of cases in deleting e-mail to outgoing Bolton likened inaugu- Chapter 15.) District courts use 2 types of juries desks before tomorrow’s cleaning out their Nation- in criminal cases. A grand jury, which usually in- of President George H.W. Bush. The ration watchdog group, cludes 16 to 23 people, hears charges against a al Security Archive, a government person suspected of having committed a crime. public documents and are said that the messages are If the grand jury believes there is sufficient evi- records preservation laws. A covered under federal dence to bring the person to trial, it issues an if e-mail should be treated hearing will determine indictment—a formal accusation charging a records. like other government person with a crime. If the jury believes there is not sufficient evidence, the charges are dropped.

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A petit jury, which usually consists of 6 or 12 Rulings of Federal Courts people, is a trial jury. Its function is to weigh the evidence presented at a trial in a criminal or civil case. In a criminal case, a petit jury renders a ver- dict of guilty or not guilty. In a civil case, the jury finds for either the plaintiff, the person bringing the suit, or the defendant, the person against whom the suit is brought. If the parties in a civil case do not wish a jury trial, a judge or a panel of three judges weighs the evidence. District courts are the workhorses of the federal judiciary, hearing hundreds of thousands of cases each year. This caseload represents more than 80 percent of all federal cases. District courts have jurisdiction to hear cases involving federal questions: issues of federal statutory or con- stitutional law. They can also hear some cases involving citizens of dif- ferent states. In the vast majority of their cases, district courts render the final decision. Few are appealed. One scholar explained: Settling Disputes Conflicts between the major Trial judges, because of the multitude of league players’ union and the owners disrupted “cases they hear which remain unheard or baseball in 1994 and 1995. Federal District unchanged by appellate courts, as well as Judge Sonia Sotomayer of New York issued the because of their fact- and issue-shaping ruling that ended the baseball strike. Why was the baseball strike resolved in a federal powers, appear to play an independent court, rather than a state or local court? and formidable part in the policy impact of the federal court system upon the larger political system. —Kenneth” M. Dolbeare, 1969 Federal Courts of Appeals Good records are important because a person or group that loses a case in a district court may appeal to a federal Officers of the Court Many appointed offi- court of appeals or, in some instances, directly to cials provide support services for district courts. the Supreme Court. Congress created the United Each district has a United States attorney to repre- States courts of appeals in 1891 to ease the appeals sent the United States in all civil suits brought workload of the Supreme Court. The caseload of against the government and to prosecute people appellate courts has increased dramatically since charged with federal crimes. Each district court 1980, climbing from 23,200 cases to nearly 55,000 appoints a United States magistrate who issues ar- in 1999. rest warrants and helps decide whether the arrest- The appellate level includes 13 United States ed person should be held for a grand jury hearing. courts of appeals. The United States is divided into A bankruptcy judge handles bankruptcy cases for 12 judicial circuits, or regions, with 1 appellate each district. A United States marshal carries out court in each circuit. The thirteenth court is a spe- such duties as making arrests, securing jurors, and cial appeals court with national jurisdiction. Usu- keeping order in the courtroom. With the help of ally, a panel of three judges sits on each appeal. In deputy clerks, bailiffs, and a stenographer, a clerk a very important case, all of the circuit judges may keeps records of court proceedings. hear the case.

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FederalFederal JudicialJudicial CircuitsCircuits andand DistrictsDistricts

WA ME MT ND 1 OR MN 6 VT NH WI NY MA ID SD 8 9 2 WY MI RI 7 3 CT NE IA PA NV NJ IL OH MD UT IN DE CA CO WV VA Federal and KS MO 10 KY 4 D.C. Circuits, 6 NC Washington, D.C. TN AZ OK AR NM AL SC GA TX MS 11 5 LA

AK FL 1 HI 3

9 Puerto Rico Virgin Islands Northern Guam Mariana Islands Numbers indicate judicial circuits. District Boundaries Source: Federal Judicial Center, www.fjc.gov.

Critical Thinking The United States judicial system is divided into 94 district courts and 13 circuit or appellate courts. What kinds of cases do district courts hear?

As their name implies, the courts of appeals The Court of International Trade Former- have only appellate jurisdiction. Most appeals arise ly known as the United States Customs Court, this from decisions of district courts, the U. S. Tax Court, court has jurisdiction over cases dealing with tar- and various territorial courts. These courts also hear iffs. Citizens who believe that tariffs are too high appeals on the rulings of various regulatory agen- bring most of the cases heard in this court. cies, such as the Federal Trade Commission and the The Court of International Trade is based in Federal Communications Commission. New York City, but it is a national court. The judges The courts of appeals may decide an appeal in also hear cases in other major port cities around one of three ways: uphold the original decision, re- the country such as New Orleans and San Francis- verse that decision, or send the case back to the co. The Circuit Court of Appeals for the Federal lower court to be tried again. Unless appealed to Circuit hears decisions appealed from this court. the Supreme Court, decisions of the courts of ap- peals are final. In 1982 Congress set up a special court of ap- Legislative Courts peals, called the United States Circuit Court of Along with the constitutional federal courts, Appeals for the Federal Circuit. This court hears Congress has created a series of courts cases from a federal claims court, the Court of In- referred to as legislative courts. As spelled out in ternational Trade, the United States Patent Office, Article I 1 of the Constitution, the legislative courts and other executive agencies. The court’s head-

quarters are in Washington, D.C., but it sits in See the following footnoted materials in the Reference Handbook: other parts of the country as needed. 1. The Constitution, pages 774–799.

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help Congress exercise its powers. Thus, it was the agency rulings about the federal taxes they must power of Congress to tax that led to the creation of pay. The Tax Court is based in Washington, D.C., the United States Tax Court. The congressional but it hears cases throughout the United States. A power of regulating the armed forces led to the for- federal court of appeals handles cases appealed mation of the Court of Military Appeals. The duty from the Tax Court. of Congress to govern overseas territories such as Guam and the Virgin Islands led to the creation of U.S. Court of Appeals for the Armed territorial courts. Similarly, congressional supervi- Forces Congress established this court in 1950. sion of the District of Columbia led to the establish- It is the armed forces’ highest appeals court. This ment of a court system for the nation’s capital. court hears cases involving members of the armed forces convicted of breaking military law. As its U.S. Court of Federal Claims Established name implies, it has appellate jurisdiction. This in 1982, the U.S. Court of Federal Claims is a court court is sometimes called the “GI Supreme Court.” of original jurisdiction that handles claims against The United States Supreme Court has jurisdiction the United States for money damages. A person to review this court’s decisions. who believes that the government has not paid a bill for goods or services may sue in this court. The Territorial Courts Congress has created a Claims Court’s headquarters are in Washington, court system in the territories of the Virgin Islands, D.C., but it hears cases throughout the country Guam, the Northern Mariana Islands, and Puerto as necessary. The Circuit Court of Appeals for Rico. These territorial courts are roughly similar to the Federal Circuit hears any appeals from the district courts in function, operation, and jurisdic- Claims Court. tion. They handle civil and criminal cases, along with constitutional cases. The appellate courts for United States Tax Court Acting under its this system are the United States courts of appeals. power to tax, Congress provided for the present Tax Court in 1969. As a trial court, it hears cases re- Courts of the District of Columbia Be- lating to federal taxes. Cases come to the Tax Court cause the District of Columbia is a federal district, from citizens who disagree with Internal Revenue Congress has developed a judicial system for the Service rulings or other Treasury Department nation’s capital. Along with a federal district court

merely felt you were not Serving on a Jury right for that particular case. f you are registered to vote or have a driver’s li- It is possible to be ex- cense, you may be called for jury duty. To serve cused from jury duty. However, I on a jury, you must be a United States citizen remember that just as a jury and at least 18 years old. You also must under- trial is a citizen’s right, Citizens stand English and not have been convicted of a jury service is a citizen’s on a jury felony. Should you receive a jury summons, be sure responsibility. to follow its instructions. Failure to do so is a crime. When you appear for jury duty, you become articipating part of a pool from which jurors are chosen. During IN GOVERNMENT ACTIVITY the selection process you may be questioned by the judge and by attorneys for each side in a case. Interview a Juror Find people from your school or Respond honestly, even if the questions seem city who have served on a jury. Ask them to recall embarrassing or irrelevant. If you are not selected, their impressions of the experience. Report your it is not a reflection of you personally. Someone findings to the class.

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and a court of appeals, various local courts handle public and can be issued without probable cause, both civil and criminal cases that need to be heard which is not the case with most criminal cases. within the District of Columbia.

The Court of Veterans’ Appeals In 1988 Selection of Federal Judges Congress created the United States Court of Veter- Article II, Section 2,1 of the Constitution ans’ Appeals. The new court was to hear appeals provides that the president, with the advice from the Board of Veterans’ Appeals in the De- and consent of the Senate, appoints all federal partment of Veterans Affairs. The cabinet-level de- judges. The legal profession regards a position on partment was created to deal with veterans’ claims the federal bench as recognition of a lawyer’s high for benefits and other veterans’ problems. This standing in the profession. Judges in the constitu- court handles cases arising from unsettled claims. tional courts serve, as the Constitution prescribes, “during good behavior,” which, in practice means Foreign Intelligence Surveillance Court for life. A life term grants judges freedom from Congress created this court in 1978 as part of the public or political pressures when deciding cases. Foreign Intelligence Security Act (FISA). The court was authorized to secretly wiretap people suspected Party Affiliation Presidents favor judges who of spying against the United States. In the 2001 USA belong to their own political party. In recent years Patriot Act, Congress gave the court a four-year the percentage of appointed federal judges who authorization to approve wiretaps and searches of

anyone suspected of “terrorism or clandestine activ- See the following footnoted materials in the Reference Handbook: ities.” FISA search warrants do not have to be made 1. The Constitution, pages 774–799.

ProfileProfile ofof thethe FederalFederal JudicialJudicial BranchBranch

Number of Judicial Positions Male Republican Chief Justice of 1 82% 49% the United States Democrat 45% Associate Justices of 8 the Supreme Court Independent Female U.S. Circuit Judges 179 18% 6% U.S. District Judges 649 African Caucasian U.S. Court of American 84% International 9 10% Trade Judges Native American U.S. Court of Federal 0.3% 16 Hispanic* Asian Claims Judges 5% 0.5% U.S. Tax Court Judges 19 * Hispanics can be of any race. Note: Data for gender, political party, and ethnicity are based on U.S. Court of Appeals and U.S. District Court judgeship appointments from 1977–2000. Total may not add up to 100% due to rounding. Source: Sourcebook of Criminal Justice Statistics (Washington, D.C.: Government Printing Office, 2002)

The judicial statistics above cover the presidential administrations from Carter through Clinton. What might account for the nearly equal percentages of Republicans and Democrats selected as judges during this time?

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belong to the president’s party has ranged from 81 system, a president submits the name of a judicial percent in the case of President Gerald Ford’s ap- candidate to the senators from the candidate’s state pointments to a high of 95 percent in President before submitting it for formal Senate approval. If Jimmy Carter’s case. either or both senators oppose the nominee, the Another factor that emphasizes the political president usually withdraws the name and nomi- nature of court appointments is the power of Con- nates another candidate. gress to increase the number of judgeships. Studies The practice of senatorial courtesy is limited to have shown that when one party controls both the the selection of judges to the district courts and presidency and Congress, it is more likely to in- other trial courts. It is not followed in the case of crease the number of judicial posts. When Presi- nominations to the courts of appeals and the dent Kennedy was elected in 1960, the Democratic Supreme Court. Circuit courts of appeals cover Congress immediately passed a new bill creating 71 more than one state, so that an appointment to this new positions for the president to fill. court is regional in nature. A position on the Supreme Court is a national selection rather than Judicial Philosophy Because judges are ap- a statewide or a regional one. pointed for life, presidents view judicial appoint- ments as a means of perpetuating their political The Background of Federal Judges Al- ideologies even after they have left the White most all federal judges have had legal training and House. This fact has made judicial appointments a have held a variety of positions in law or govern- political issue rather than merely a matter of as- ment including service as law school professors, sessing a judicial candidate’s qualifications. In the members of Congress, leading attorneys, and fed- summer of 2001, for example, the National Associ- eral district attorneys. More than one-third of dis- ation for the Advancement of Colored People trict court judges have served as state court judges. (NAACP) vowed to fight President George W. Until very recently few women, African Amer- Bush’s attempts to appoint conservative justices to icans, or Hispanics were appointed as judges in the the courts, fearing that conservative judges would lower federal courts. President Jimmy Carter did not generally support the civil rights issues that the much to change this situation in his court ap- NAACP considers important. pointments. President Lyndon Johnson appointed Thurgood Marshall the first African American jus- Senatorial Courtesy In naming judges to trial tice to the Supreme Court. President Ronald Rea- courts, presidents customarily follow the practice of gan appointed Sandra Day O’Connor the first senatorial courtesy. Under the senatorial courtesy female justice to the Supreme Court.

SectionSection 22 Assessment Assessment22 ReviewReview Checking for Understanding Critical Thinking 1. Main Idea Use a graphic organizer like the one 6. Demonstrating Reasoned Judgment A judge who shown to identify the three Court of Appeals shares a president’s views when first appointed options a court of appeals may change views when making decisions on has when deciding a case. the bench. Why? 2. Define grand jury, indictment, petit jury, judicial circuit, senatorial courtesy. 3. Identify United States Circuit Court of Appeals for the Federal Circuit. 4. What two major divisions of federal courts has Political Processes Review the criteria used Congress created? by presidents to appoint federal judges. Devel- 5. In what two ways do political parties influence op any additional criteria that you think should the federal court system? be used for nominating judges. Prepare the criteria in the form of a checklist.

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NOTEBOOK

VERBATIM MILESTONES WHAT PEOPLE SAID ASSEMBLED, February 2, SWORN IN, October 2, 1967. 1790 The FIRST MEETING of the THURGOOD BETTMANN “I guess this is the end of our U.S. Supreme Court justices MARSHALL friendship.” took place in New York City one became the CORBIS PRESIDENT LYNDON JOHNSON day later than originally planned first African to Thurgood Marshall, after saying because Chief Justice John Jay American to be AP he was going to appoint Marshall to PHOTO the Supreme Court, in 1967 was delayed by transportation sworn in as a problems. At the time, there justice of the “Women’s equality under the were six justices. In 1869, the Supreme law does not effortlessly number was settled Court. translate into equal permanently at nine. participation in the legal SUPREME HANDSHAKE, late profession.” SETTLED IN, October 7, 1800s. CHIEF JUSTICE MELVILLE SANDRA DAY O’CONNOR, 1935. THE SUPREME COURT FULLER started the tradition of first female Supreme Court moved into its current building. having each Supreme Court justice, in 1985 For the previous 145 years, the justice shake hands with the [Those who won our Court had moved from building other eight justices before the independence]“ believed that to building, sharing space with start of a private conference freedom to think as you will and other government agencies. where decisions are discussed. to speak as you think are means It serves as a reminder that the indispensable to the discovery and justices are unified in purpose spread of political truth. . . . even if they have JUSTICE LOUIS D. BRANDEIS,” differences from his opinion in Whitney v. of opinion. California, in 1927 CORBIS Why, to improve my mind. “Retired Supreme Court justice”

OLIVER WENDELL HOLMES, CORBIS JR., then 92, in response to Franklin Roosevelt’s question about why he was reading Plato in the Greek language, in 1933 AP PHOTO/EVAN VUCCI

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U.S. SUPREME COURT

DECIDING OUR NUMBERS NAJLAH

FUTURE 9 The number of Supreme FEANNY/CORBIS

CHIP DOES SEGREGATION—AND ITS Court aides, who run errands HENDERSON/INDEX corresponding ideas of and deliver mail. There is one “separate but equal”— aide for each justice. contradict the tenets of the SABA Constitution? This hotly

STOCK The floor debated question came to 2nd where Ruth Bader the U.S. Supreme Court in IMAGERY Ginsberg chose to the case of Brown v. Board of have her chambers Education. On May 17, 1954, because her room Chief Justice Earl Warren there is larger than delivered the decision of the Court. Here is part of what he said: those of the rest of the “Today, education is perhaps the most important function of justices who have chambers state and local governments. Compulsory school attendance laws on the first floor. and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public 0 The number of term limits responsibilities, even service in the armed forces. It is the very imposed on a justice (as long foundation of good citizenship. Today it is a principal instrument in as he or she exhibits “good awakening the child to cultural behavior”). values, in preparing him for later professional training, and A SLICE OF JUSTICE The number of in helping him to adjust The Supreme Court cannot 188 seats open to the public in normally to his environment. hear all the cases that are the visitors’ section to watch In these days, it is doubtful that brought before it—there’s not any child may reasonably be public oral arguments. enough time. Here’s how the Seating is on a first-come, expected to succeed in life if numbers break down: he is denied the opportunity first-served basis. of an education. Such an opportunity, where the state 5,000 Approximate number The number of minutes has undertaken to provide it, 5 of cases the Court is left for a lawyer making oral is a right which must be made petitioned to review arguments before the available to all on equal terms. each year. Supreme Court to wrap up his “We come then to the or her argument once a small question presented: Does 250 white light on the lectern segregation of children in Approximate number of turns on. public schools solely on the cases it actually hears. basis of race, even though the physical facilities and other 25 $94,000 The amount ‘tangible’ factors may be equal, Approximate number returned to the U.S. Treasury deprive the children of the of cases that come to upon the completion of the minority group of equal the Court on appeal, Supreme Court building, educational opportunities? We such as when a state which cost less than the believe that it does.” or lower federal court $9,740,000 Congress had CORBIS declares a federal law authorized for its construction. unconstitutional.

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Section 33 The Supreme Court

Reader’s Guide he Supreme Court stands at the top of the American legal system. Article III of the Key Terms Constitution created the Supreme Court as one of three coequal branches of the riding the circuit, opinion nationalT government, along with Congress and the Find Out president. ■ Why does the Supreme Court hear very few The Supreme Court is the court of last resort cases under its original jurisdiction? in all questions of federal law. The Court is not ■ What political influences affect the selection required to hear all cases presented before it, and of Supreme Court justices? carefully chooses the cases it will consider. It has final authority in any case involving the Constitu- Understanding Concepts tion, acts of Congress, and treaties with other Checks and Balances Why are persons who are nations. Most of the cases the Supreme Court nominated as Supreme Court justices subject to hears are appeals from lower courts. The decisions close scrutiny? of the Supreme Court are binding on all lower courts. Nomination to the Supreme Court today is a very high honor. It was not always so. Several of Dies George Washington’s nominees turned down the Holmes job. Until 1891, justices earned much of their pay ARCH 6, 1935 WASHINGTON, D.C., M while riding the circuit, or traveling to hold court in their assigned regions of the country. One jus- liver Wendell Holmes, tice, after a painful stagecoach ride in 1840, wrote as an OJr., who served to his wife: associate justice on the for 29 years, Supreme Court I think I never again, at this season of the home of pneu- died at his year, will attempt this mode of journeying. early this morn- “ monia very ...I have been elbowed by old women— Appointed in 1902 ing. jammed by young ones—suffocated by Theodore Roosevelt, by cigar smoke—sickened by the vapours of Holmes wrote 873 opinions Court—more than bitters and w[h]iskey—my head knocked for the Oliver Wendell justice. Perhaps through the carriage top by careless drivers any other Holmes, Jr. his most famous opinion and my toes trodden to a jelly by unheed- was his dissent in Lochner ing passengers. he supported the state’s New York (1905), in which —Justice Levi Woodbury, 1840 v. workers to ten hours ” right to limit the labor of bakery a unanimous court in Schenck per day. His opinion for Today the Court hears all its cases in the established the “clear and v. United States (1919) Supreme Court building in Washington, D.C., in free speech cases. Holmes, present danger”standard in a large, first-floor courtroom that is open to of the same name, will of the well-known author the public. Nearby is a conference room where son beauty and power of be remembered for the unique the justices meet privately to decide cases. The his written opinions. first floor also contains the offices of the jus- tices, their law clerks, and secretaries.

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Supreme Court Jurisdiction involved. In such cases, however, the Supreme Court has the authority to rule only on the federal The Supreme Court has both original issue involved, not on any issues of state law. A state and appellate jurisdiction. Article III, court, for example, tries a person charged with vio- Section 2,1 of the Constitution sets the Court’s lating a state law. During the trial, however, the ac- original jurisdiction. It covers two types of cases: cused claims that the police violated Fourteenth (1) cases involving representatives of foreign gov- Amendment rights with an illegal search at the time ernments and (2) certain cases in which a state is a of the arrest. The defendant may appeal to the party. Congress may not expand or curtail the Supreme Court on that particular constitutional Court’s original jurisdiction. issue only. The Supreme Court has no jurisdiction Many original jurisdiction cases have involved to rule on the state issue (whether the accused ac- two states or a state and the federal government. tually violated state law). The Court will decide When Maryland and Virginia argued over oyster only whether Fourteenth Amendment rights were fishing rights, and when a dispute broke out be- violated. tween California and Arizona over the control of water from the Colorado River, the Supreme Court had original jurisdiction. Supreme Court Justices The Supreme Court’s original jurisdiction The Supreme Court is composed of 9 jus- cases form a very small part of its yearly work- tices: the chief justice of the United States load—an average of fewer than five such cases a and 8 associate justices. Congress sets this number year. Most of the cases the Court decides fall under and has the power to change it. Over the years it the Court’s appellate jurisdiction. has varied from 5 to 10, but it has been 9 since Under the Supreme Court’s appellate jurisdic- 1869. In 1937 President Franklin D. Roosevelt at- tion, the Court hears cases that are appealed from tempted to gain greater control of the Court by lower courts of appeals, or it may hear cases from asking Congress to increase the number of justices. federal district courts in certain instances where an Congress refused, in part because the number 9 act of Congress was held unconstitutional. was well established. The Supreme Court may also hear cases that

are appealed from the highest court of a state, if See the following footnoted materials in the Reference Handbook: claims under federal law or the Constitution are 1. The Constitution, pages 774–799.

The Highest Court in the Land

Judicial Ideals The nine justices meet regularly in the Supreme Court building in Washington, D.C. What do you think the motto on the Supreme Court seal means as it applies to the Court?

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Supreme Court Justices ▲

Interpreters of the Law The members of the highest court in the land pose for an informal photograph. They are (from left to right) associate justices Sandra Day O’Connor, Anthony Kennedy, Antonin Scalia, Chief Justice William H. Rehnquist, and associate justices David Souter, Ruth Bader Ginsburg, Clarence Thomas, Stephen Breyer, and John Paul Stevens. Why is it important Supreme Court justices occupy that a judge or Supreme Court justice weigh all arguments this bench while they hear cases. equally?

In a recent year the eight associate justices tradition, and as the needs and circumstances of received salaries of $173,600. The chief justice re- the nation have developed. The main duty of the ceived a salary of $181,400. Congress sets the jus- justices is to hear and rule on cases. This duty in- tices’ salaries and may not reduce them. volves them in three decision-making tasks: decid- Under the Constitution, Congress may remove ing which cases to hear from among the thousands Supreme Court justices through impeachment for appealed to the Court each year; deciding the case and conviction of “treason, bribery, or other high itself; and determining an explanation for the de- crimes and misdemeanors.” No Supreme Court cision, called the Court’s opinion. justice has ever been removed from office through The chief justice has several additional duties impeachment, however. The House of Representa- such as presiding over sessions and conferences tives impeached Justice Samuel Chase in 1804 be- at which the cases are discussed. The chief justice cause of his participation in partisan political also carries out a leadership role in the Court’s ju- activities, but the Senate found him not guilty. dicial work and helps administer the federal court system.1 Duties of the Justices The Constitution

does not describe the duties of the justices. Instead, See the following footnoted materials in the Reference Handbook: the duties have developed from laws, through 1. Supreme Court Chief Justices, page 769.

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The justices also have limited duties related to the 12 federal judicial circuits. One Supreme Court justice is assigned to each federal circuit. Three of the justices handle 2 circuits each. The justices are responsible for requests for special legal actions that come from their circuit. In 1980, for example, a lower federal court ruled against the federal government’s program of draft registration. Lawyers for the federal gov- By the Numbers William O. Douglas ernment then requested the Supreme Court to served on the Supreme Court for 36 years temporarily set aside the lower court’s decision. The and 6 months, longer than any other justice. Supreme Court justice who was responsible for the John Rutledge, on the other hand, served the federal judicial circuit in which the issue arose heard shortest total time—1 year, 4 months. At 32 this request. years old, Joseph Story was the youngest Occasionally, justices take on additional duties person appointed, while Horace Lurton at 65 as their workload permits. In 1945 Justice Robert years was the oldest. Jackson served as chief prosecutor at the Nuremberg trials of Nazi war criminals. In 1963 Chief Justice Earl Warren headed a special commission that not a formal requirement, a justice usually has a investigated the assassination of President Kennedy. law degree and considerable legal experience. Most To maintain their objectivity on the bench, justices have been state or federal court judges, or justices are careful not to become involved in out- have held other court-related positions such as at- side activities that might prevent them from deal- torney general. One former president, William ing fairly with one side or the other on a case. If Howard Taft, served as chief justice. Younger peo- justices have any personal or business connection ple are not usually appointed to the Court. Most of with either of the parties in a case, they usually dis- the justices selected in the twentieth century were qualify themselves from participating in that case. in their fifties when they were appointed to the Court. Ten were younger than 50, and the remain- Law Clerks In 1882 Justice Horace Gray hired der were more than 60 years old. the first law clerk—mainly to be his servant and Justices have not been representative of the barber. Today the Court’s law clerks assist the jus- general population in social class, background, tices with many tasks, enabling the justices to con- gender, and race. Most justices have come from centrate on their pressing duties. Law clerks read upper socioeconomic levels. To date, only two all the appeals filed with the Court and write African American justices, Thurgood Marshall memos summarizing the key issues in each case. and Clarence Thomas, and only two women, San- When cases are decided, the clerks help prepare the dra Day O’Connor and Ruth Bader Ginsburg, Court’s opinions by doing research and sometimes have been appointed. The Constitution does not writing first drafts of the opinions. require justices to be native-born Americans. Six The justices each hire a few law clerks from Supreme Court justices have been born outside among the top graduates of the nation’s best law the United States. Of these, three were appointed schools. These young men and women usually by George Washington. work for a justice for one or two years. After leav- ing the Court, many clerks go on to distinguished careers as judges, law professors, and even Appointing Justices Supreme Court justices themselves. Justices reach the Court through appoint- ment by the president with Senate approval. Background of the Justices Throughout The Senate usually grants such approval, and the Court’s history more than 100 men and 2 presidents with strong support in the Senate are women have served as justices. What sort of people less likely to have their candidates rejected, but become the top judges in the land? Although it is there is no guarantee. The Senate even chose to

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reject one of President Washington’s nominees. enemies among Western senators because of his During the nineteenth century, more than 25 per- decisions as secretary of the interior. So the presi- cent of the nominees failed to win Senate approval. dent chose a federal judge, Stephen Breyer, who By contrast, during the early part of the twentieth had friends among Democrats and Republicans. century, the Senate was much more supportive of He was a safe choice and was easily confirmed. presidential choices. More recently, the Senate re- Presidents prefer to nominate candidates jected two of President Nixon’s nominees and whose political beliefs they believe are similar to President Reagan’s nomination of Robert Bork in their own. However, several presidents have dis- 1988. The Senate closely scrutinized Justice covered that it is very difficult to predict how an Clarence Thomas’s nomination in 1991, but final- individual will rule on sensitive issues once he or ly accepted the nomination by a vote of 52 to 48. she becomes a member of the Court. After secur- As is the case with lower court judges, political ing the nomination of Tom Clark, President Tru- considerations often affect a president’s choice of a man expressed his displeasure: nominee to the Court. Usually presidents will choose someone from their own party, sometimes Tom Clark was my biggest mistake. No as a reward for faithful service to the party. But “question about it....I don’t know what presidents must be careful to nominate people got into me.He was no ...good as Attor- who are likely to be confirmed by the Senate. Pres- ney General, and on the Supreme Court . . . ident Clinton had to decide among several choices he’s been even worse. He hasn’t made one in 1994. Bruce Babbitt was thought to be the likely right decision I can think of. nominee. However, Babbitt had some powerful —Harry” S Truman

ildlife ecologist Renee In 1995 a federal judge Askins led the battle to in Wyoming refused ranchers’ Making a Difference Wreintroduce the gray wolf requests to stop the wolf reintro- Making a Difference into Yellowstone National Park. The duction program. As a result, 30 struggle lasted almost 30 years, but wolves were captured in Canada. Renée Askins Askins viewed the issue as righting Fifteen were released in the park a wrong. “We exterminated the wolf and fifteen in Idaho. Then, in 1997, to take control. I think people are a district court in Wyoming ordered beginning to see we’ve taken too that the wolves be removed. Sup- much control,” Askins said. porters of the wolves appealed. No wolves had lived in Yellow- Meanwhile, the wolves were allowed stone since 1930. The Endangered to remain in the park until a higher Species Act of 1973 required that court decided the issue. the federal government reintroduce On January 13, 2000, the 10th the wolf. However, ranchers and Circuit Court of Appeals in Denver farmers feared that the wolves overturned the lower court’s ruling. would kill their livestock. To protect By this time the wolves in Yellow- their property, ranchers went to fed- stone and Idaho numbered more eral courts to block the program. than 300. The American Farm Renee Askins created the Wolf Bureau threatened to appeal the Fund in Moose, decision before the Supreme Court Wyoming, to raise but changed its mind right before money and rally support for reintro- the appeal deadline in April 2000. ducing the gray wolf to the park. Ask- The presence of the wolves Wolf Fund logo ins pointed out, “Lawyers are costing remains controversial. Courts and ranchers more money than they’ll legislatures continue to battle ever lose because of the wolf.” over this issue.

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When President Eisenhower Selecting Justices named Earl Warren as chief justice in 1953, he expected Warren to continue to support the rather conservative positions he had taken as governor of California. The Warren Court, however, turned out to be the most liberal, activist Court in the country’s history. In identifying and selecting candidates for nomination to the Court, the president receives help from the attorney general and other Justice Department officials. The attorney general usually con- sults with the legal community and proposes a list of possible candi- dates for the president to consider. In making the final selection, the president and the attorney general may also check with leading mem- bers of Congress. In addition, they hear from several different groups that have a special interest in the selection of a justice. In 1932 faculty members of the nation’s leading law schools, labor and business leaders, judges, and senators all urged Republican pres- Political Processes President Clinton chose Judge Ruth Bader ident Herbert Hoover to appoint Ginsburg in June 1993 as his first nominee to the Supreme Democrat Benjamin Cardozo to Court. Ginsburg was active in civil liberties and women’s rights is- the Supreme Court. Cardozo was sues before going on the federal bench, but has also advocated chief judge of the New York Court judicial restraint. How do the Supreme Court appointments a of Appeals. The support for Car- president makes have long-term consequences? dozo was so great that Hoover nominated Cardozo, who was con- firmed without opposition. “qualified,”or “not qualified.”The ABA rating is ad- visory, and neither the president nor the Senate is re- The Role of the American Bar Associa- quired to follow it. tion The American Bar Association (ABA) is the In 2001, President George W. Bush attempted largest national organization of attorneys. Since to reduce the ABA’s role, arguing that the liberal- 1952, the ABA’s Committee on the Federal Judiciary oriented organization plays too large a part in the has been consulted by every president concerning al- confirmation process. Democrats, on the other most every federal judicial appointment. The role of hand, contend that the ABA provides a fair can- the ABA is solely to evaluate the professional qualifi- didate appraisal. cations of candidates for all Article III judicial posi- tions—the Supreme Court, the United States Courts The Role of Other Interest Groups Inter- of Appeals, and the United States District Courts. The est groups that have a stake in Supreme Court deci- committee rates nominees as either “well qualified,” sions may attempt to influence the selection

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process. Generally, these groups make their posi- The Role of the Justices Members of tions on nominees known through their lobbyists, the Supreme Court sometimes have considerable or agents, and the media. Strong opposition to a influence in the selection of new justices. As lead- nominee by one or more major interest groups may ers of the Court, chief justices have often been influence the senators who vote on the nominee. very active in the selection process. Justices who Labor unions, for example, must work with the newcomers may oppose a nominee if they be- often participate in selecting lieve the nominee is antilabor, candidates. They may write let- based upon his or her previous ters of recommendation sup- court decisions, speeches, or writ- porting candidates who have ings. Similarly, the National been nominated, or they may Organization for Women (NOW) lobby the president for a certain may oppose a nominee who is candidate. considered to be against women’s Chief Justice William Howard rights. This was the case with Pres- Taft, for example, intervened ident Ford’s selection of John Paul frequently in the nominating Stevens in 1975. Despite NOW’s process. He personally led a cam- criticism, however, the Senate ap- paign for the nomination of proved Stevens. More recently, Pierce Butler, who was named to NOW expressed its opposition to the Court in 1922. Chief Justice the nominations of David Souter Stamp celebrates the Warren Burger suggested the in 1990 and Clarence Thomas in Court’s 200th anniversary. name of Harry Blackmun, who 1991. In both instances NOW was was also confirmed. Knowing a concerned that the candidates might cast deciding member of the Court personally helped Sandra votes in a case that would overturn Roe v. Wade .1 Day O’Connor. She received a strong endorsement Civil rights groups are also usually active dur- from former law school classmate Justice William ing the selection process. Groups such as the Na- Rehnquist in 1981. tional Association for the Advancement of Colored

People (NAACP) carefully examine nominees’ See the following footnoted materials in the Reference Handbook: views on racial integration and minority rights. 1. Roe v. Wade case summary, page 764.

Section 33 AssessmentAssessment Checking for Understanding Critical Thinking 1. Main Idea Use a graphic organizer like the one 6. Understanding Cause and Effect Supreme Court below to identify two kinds of cases where the justices have often been active in the selection Supreme Court has orginial jurisdiction and two of new justices. Do you think this is appropriate? kinds that may be appealed from a state court. Explain your answer. Original Appeal

2. Define riding the circuit, opinion. 3. Identify Earl Warren, ABA, NOW. Checks and Balances With a partner, prepare 4. Under what conditions may a case be an imaginary interview with a Supreme Court appealed from a state court to the Supreme justice. The interview should provide your Court? audience with a biographical sketch of the 5. In your opinion, should politics influence the se- justice, including information about the lection of Supreme Court justices? Explain. person’s place of birth, education, and work prior to being appointed.

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Distinguishing Fact from Opinion

acts are statements that can be proved by I would say that the Court has reached—if evidence such as records or historical “not already passed—its capacity to deal F sources. For example, it is a fact that Lewis with a [growing] caseload....I believe Powell, Jr., served on the Supreme Court. most members of the Court will agree that Opinions are statements of preferences or beliefs we are not always able to function with not proven conclusively by evidence. One may the care, the deliberation, the consultation hold an opinion that Powell was the greatest or even the basic study which are so requi- Justice ever. Some evidence may support this site to the quality and soundness of opinion, but contrary evidence supports other Supreme Court decisions. In my view, we beliefs about Powell as well. cannot continue as we are without a gradually perceptible dilution of this Learning the Skill quality. ”—Lewis F. Powell, Jr., 1971 The following steps will help you to identify facts and opinions. 1. Identify facts. Can you prove 1. Study the information careful- that the caseload of Supreme ly to identify the facts. Ask: Court justices is large and Can these statements be growing? proved? Where would I find 2. Note opinions. What phrases information to verify them? does Justice Powell use to 2. If a statement can be proved, it is signal his opinions? factual. Check the sources for the 3. What is the purpose of facts. Often statistics sound im- Powell’s statement? pressive, but they may come from 4. What action might Justice an unreliable source, such as an Justice Lewis Powell, Jr. Powell suggest? interest group trying to gain support for its programs. Application ActivityActivity 3. Identify the opinions. Opinions often contain phrases such as in my view, I believe, it is my Record a television interview. List three conviction, I think, and probably. Look for ex- facts and three opinions that were stated. pressions of approval or disapproval such as Answer the following questions: Do the facts good, bad, poor, and satisfactory. seem reliable? How can you verify the facts? Was the person being interviewed trying to convince viewers of some position? Explain. Practicing the Skill The Glencoe Skillbuilder The following excerpt concerns Supreme Interactive Workbook, Level 2 Court justices and their contributions to the provides instruction and practice Court. Read the excerpt and answer the questions. in key social studies skills.

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Chapter 1111 Assessment and Activities Recalling Facts GOVERNMENT 1. What are the two systems of courts in the United States? Self-Check Quiz Visit the United States Government: 2. What principle resulted from the ruling in Mar- Democracy in Action Web site at gov.glencoe.com and bury v. Madison? click on Chapter 11–Self-Check Quizzes to prepare 3. What are the duties of a grand jury in a crimi- for the chapter test. nal case? 4. What kinds of cases are heard by the Court of International Trade? Reviewing Key Terms 5. Why do federal judges serve for life? 6. Describe the three decision-making tasks of a Define each of the following terms and use it in a Supreme Court justice. sentence. 7. What are three duties of the chief justice of concurrent jurisdiction indictment the United States? appellate jurisdiction petit jury 8. What is the difference between courts with litigant riding the circuit original jurisdiction and courts with appellate grand jury jurisdiction?

Understanding Concepts Lower Federal Courts 1. Constitutional Interpretations If the issue is Constitutional courts whether a person’s civil rights had been violat- • Established by Congress under the provisions of Article III of the ed in a court decision, through what levels of Constitution courts might that person appeal? • Include federal district courts, federal courts of appeals, and 2. Political Processes Federal district judges gen- United States Court of International Trade erally represent the values and attitudes of the states that they serve. How can a president Legislative courts assure that an appointee meets this criterion? • Created by Congress under provisions in Article I of the Constitution to help Congress carry out its powers 3. Checks and Balances When the Supreme Court • Include United States Tax Court, U.S. Court of Appeals for the rules on an appeal from a state court, what Armed Forces, Court of Veterans’ Appeals, and others restriction applies to the Court’s ruling? The Supreme Court

• Original jurisdiction in cases involving representatives of foreign Critical Thinking countries and certain cases in which a state is a party 1. Identifying Alternatives Use a graphic organizer • Appellate jurisdiction in cases that are appealed from lower courts like the one below to identify two alternative of appeals or from a state’s highest court, as well as certain cases solutions for the high case load of the from federal district courts in which an act of Congress was held Supreme Court. Explain why you would choose unconstitutional one and not the other. • Justices appointed by president with Senate approval Development of Supreme Court Power Alternative 1 Alternative 2

• 1801–1883: Marshall Court extended power of Supreme Court and strengthened federal power over the states • 1803: Marbury v. Madison established power of judicial review • 1953–1969: Warren Court adopted a more liberal view on civil rights and public-policy issues 320-329 CH11S3-860053 12/1/04 9:06 PM Page 329

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2. Synthesizing Information What factors determine whether a case will be tried in a state court or a Interpreting Political Cartoons Activity federal court? 1. What occurrence is this cartoon calling attention Analyzing Primary to? Sources 2. Does the car- toonist comment Chief Justice Thurgood Mar- on the qualities shall was the first African or experience of American to serve on the the justice? Supreme Court (1967–1991). 3. How does the Prior to this he was legal direc- cartoonist feel tor of the NAACP. This excerpt, about this from a speech made before event? the American Bar Association in 1981, details Marshall’s ideas about the purpose of the Supreme Court. Read the excerpt and answer the ques- tions that follow. “Well, it’s about time.” “Bar the framers of the Constitution recognized that responsiveness to the will of the majority may, if unchecked, become a tyranny of the majority. They therefore created a third branch—the judiciary— to check the actions of the legislature and the executive. 2. What does Marshall believe will happen to the In order to fulfill this function, the judiciary was Court if it does allow itself to become affected intentionally isolated from the political process and by the changing moods of public opinion? purposely spared the task of dealing with chang- ing public concerns and problems....Finally, the constitutional task we are assigned as judges is a very Participating in narrow one. We cannot make the laws, and it is not Local Government our duty to see that they are enforced. We merely Using your local library or interpret them through the painstaking process of the Internet, research the adjudicating actual ‘cases or controversies’ that come kinds of courts located before us. in or near your community. We have seen what happens when the courts have Find out the following: permitted themselves to be moved by prevailing politi- •Are they part of the federal cal pressures and have deferred to the mob rather than or state system? interpret the Constitution. Dred Scott, Plessy, Kore- •Where are the nearest federal district courts matsu, and the trial proceedings in Moore v. Dempsey, located? come readily to mind as unfortunate examples.” •Where is the nearest appeals court located? 1. What, in Marshall’s opinion, is the purpose After gathering this information, create a “court of the Supreme Court? What is the Court not directory” map of your community area and share allowed to do? your findings with the class.

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